By: Friday Faraday
There are many moving parts when it comes to the surrogacy process, and we often get focused and lost in the medical part of it because of the beautiful astonishment within it, but while that is one of the foundational pieces of it there is something else that plays an important role even before the medical element. The attorney collaboration with surrogacy agencies is intended to make the surrogacy process as straightforward and seamless as possible from beginning to end, but this relationship has many nuances, so what are some of those aspects that come up that we might not think of? Thanks to the town hall, Helping Us To Help You: The Agency/Attorney Dynamic, let’s look into it.
Like any process, one of the best practices that can help lessen or remove any future headaches is good communication, and what was stressed during the town hall was how important early communication between surrogacy agencies and the attorneys involved is. Materials like match and contract term sheets help in that early communication process as both aid in expediting the process of negotiating the contract by providing the necessary information such as:
Insurance Information
Escrow Company
OBGYN
Psychological Evaluation
Demographic Details
Compensation
Genetic Makeup or Parentage of Donor’s
These details are just a few, but knowing the full scope of information needed to draft the contract doesn’t just involve good/early communication, but it helps reduce communication and potentially help save money for all parties involved. While I was sitting in and listening to the exchange of information, there was a greater sense of making this process as straightforward as possible than what I originally expected. From the outside, many of us think that this part of the surrogacy journey might be drawn out in an overly cold way with paperwork and legal jargon, but even from the beginning, there is a weight of care for everyone involved that makes the need for an easy transition of stages come from a place of empathy.
Within that atmosphere of knowing all these details to make the process streamline, attorneys also like to approach the starting point of this from a lens of what can go wrong? As far-fetched and unwanted as that thinking can exist in this space, it provides safety. The topic of abortion, of course, needs to be thought about, but the addition of a will for the gestational surrogate needs to be part of the discussion. Eight percent of all pregnancies involve some sort of complications, and attorneys keep stats like this in the forefront and bring up a topic like the adjustment of life insurance amounts, especially when the gestational surrogate has small children of their own. The talk of any unforeseen dangers is uncomfortable, but to get the best out of anything, including a surrogacy contract, pushing past that unease is necessary, and one of the attorney’s roles is to look out for their client’s best interest.
Even with all the prep work and having early communication, sometimes the unthinkable can happen, and conflict can arise with the surrogacy contract after it has been signed. A question that can definitely be brought up is “Will the attorney be around throughout the surrogacy journey after everything has been signed?” From both sides of this agency/attorney dynamic, there is a general consensus and best practice that the legal counsel should remain available. However, that doesn’t mean that there are some attorneys that state their representation ends after signing, and from the town hall, it was learned that those are attorneys that many agencies choose not to work with going forward.
Conflict could arise from many different avenues like the need for more clarifications, amendments, or dealings with escrow, and if the conflict is small, many attorneys don’t see the need to add on any additional fee
. The goal of this particular conflict resolution is for attorneys to resolve things before they escalate to something like a termination of an agreement, and they want surrogates to feel that they are being supported, so coming back to the table and working with everyone under the original retainer is possible.
The agency/attorney partnership to resolve conflict can include third parties depending on how layered that conflict is and if it can’t be successfully solved quickly. Mental health professionals or the fertility clinic (if it’s a medical issue) can be looped in to help resolve things. Additionally, the escrow company could step in to help if the conflict is set around escrow, but that depends on the company that is used. While this introduction of third parties might be seen to make things more complicated, many attorneys and agency individuals from this town hall agree that this big team of “cross-discipline collaboration” is a brilliant way to resolve conflict.
As someone who is not an attorney or involved in a matching process, seeing this willingness of having a big team to address conflict put me in a pause, a good one. As someone who holds mental health in extreme importance, and seeing the possible introduction of mental health workers to help in certain situations really cemented that the best interest of the surrogate and the intended parents are held at all stages. I think this is knowledge that many people don’t take into the makeup of this journey and can really shift the assumptions of surrogacy being a transaction.
Within the process of attorneys and contracts, another aspect that could be overlooked but is important is location and licensure. From the agency point of view in this town hall, there is a preference to have the attorneys (drafting and/or review) be licensed in the surrogate’s state, especially if that state is in a murky area with reproductive rights. For the cases where there is some state jumping, the attorney viewpoint is to look for factors within the state that the gestational surrogate is at, such as pre-birth orders or parentage actions after birth, but even with that, this is a subject that can become complicated. A recommendation for everyone involved is to have an attorney be licensed and/or have competency in surrogacy law connected physically to where parties are at.
There is the best practice that attorneys be in the state where the surrogate is going to deliver, but when it comes to this topic, there is no direct answer, and from the agency side, this point of the process is communicated as risk mitigation to intended parents and surrogates. This is to avoid issues such as with hospitals that might receive parental rights by way of court order from another state, and the question if the hospital needs to implement it comes into play. This sense of risk mitigation also plays into the attorney mindset of thinking of the worst-case scenario as attorneys don’t want their clients to be locked into a case that is going to be in front of the media or even being scaled up to be handled by the Supreme Court.
The surrogacy process has many levels to it, and each one plays an important part and builds off one another. I learned that the agency/attorney dynamic is one that is ever-evolving with the interest of making sure that the intended parents and the gestational surrogate are looked after through all stages. There is both a need for independence and collaboration not just at selected areas, but it is held at the ready to handle what can’t be seen and creates a multi-leveled team that doesn’t disappear when everything is signed and filed. While the nature of the law can be complicated from state to state, that multi-leveled team holds open communication and safety for everyone at the foundation, and that is only a good thing.